Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
KITZ Radio Inc. File No. EB-06-ST-119
)
Licensee of KGTK (AM) NAL/Acct. No. 200632980005
)
Olympia, Washington FRN: 0003791456
)
Facility ID No. 47567
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 1, 2006
By the Acting District Director, Seattle District Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that KITZ Radio Inc. ("KITZ Radio"), the licensee of AM station KGTK,
in Olympia, Washington, apparently willfully and repeatedly violated
Section 73.3526 of the Commission's Rules (Rules) by failing to
maintain a complete public inspection file. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that KITZ Radio is apparently liable for a forfeiture in the amount of
four thousand dollars ($4,000).
II. BACKGROUND
2. On May 24, 2006, an agent of the Enforcement Bureau's Seattle Office
conducted an inspection of the public inspection file for KGTK at Mile
Hill Drive, Suite 201A, Port Orchard, Washington. While examining the
public inspection file, the agent observed that the KGTK public
inspection file was not complete. Specifically, there were no copies
of current FCC authorization to operate the station and no radio
issues/programs lists for calendar years 2005 or 2006. During the
inspection the Seattle agent interviewed the station's general manager
concerning the missing items. The general manager indicated that he
did not know why these items were missing.
3. Because the license period for radio stations in the State of
Washington ended on February 1, 2006, KITZ Radio was required to file
a renewal application for KGTK with the Commission no later than
October 1, 2005, as required by Section 73.3539(a) of the Rules. A
search of Commission's records by the Seattle agent revealed KITZ
Radio did file a timely renewal application. As of the date of this
NAL, the renewal application remains pending.
III. DISCUSSION
4. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully fails to comply with any of the
provisions of the Act or of any rule, regulation or order issued by
the Commission thereunder, shall be liable for a forfeiture penalty.
The term "willful" as used in Section 503(b) has been interpreted to
mean simply that the acts or omissions are committed knowingly. The
term "repeated" means the commission or omission of such act more than
once or for more than one day.
5. Section 73.3526(a)(2) of the Rules requires that every licensee of an
AM station licensee shall maintain a public inspection file containing
the material, relating to that station, described in paragraphs (e)(1)
through (e)(10) and paragraphs (e)(12) through (e)(14) of this section
as well as paragraph (e)(16) of this section. Further, as required by
Section 73.3526(b), the location of the public file shall be
maintained at the station's main studio location.
6. Section 73.3526(e)(1) of the Rules requires licensees to place in
their public inspection file a copy of the current FCC authorization
to operate the station. These materials shall be retained until
replaced by a new authorization. During the examination of the file on
May 24, 2006, no copy of the KGTK station authorization was found.
Therefore, KITZ Radio failed to comply with Section 73.3526(e)(1) of
the Rules.
7. Section 73.3526(e)(12) of the Rules requires AM and FM broadcast
licensees to place in their public inspection file, for each calendar
quarter, a list of programs that have provided the station's most
significant treatment of community issues during the preceding three
month period. This list is known as the radio issues/programs list.
Copies of the lists must be maintained in the file until final action
has been taken on the station's next renewal application. KGTK's
public inspection file contained no radio issues/programs lists
subsequent to 2004. Therefore, KITZ Radio failed to comply with
Section 73.3526(e)(12) of the Rules.
8. In the pending KGTK renewal application, in response to Section III,
Question 3, KITZ Radio certified that the public inspection file for
KGTK had the proper documentation as required by 73.3526. However, as
the Seattle agent's inspection revealed, KGTK did not have a complete
public inspection file. KITZ Radio was aware of the requirement to
have a complete public inspection file, given its response on the KGTK
renewal application; therefore, KITZ Radio's violation is willful. No
evidence could be found to indicate that any of the materials missing
from the public inspection file were ever in place. In particular, no
evidence could be found to show that the KGTK radio issues/programs
lists were maintained after 2004. Therefore, KITZ Radio's violation is
repeated. Where lapses occur in maintaining the public inspection
file, neither the negligent acts nor omissions of station employees or
agents, nor the subsequent remedial actions undertaken by the
licensee, excuse or nullify a licensee's rule violation.
9. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80(b) of the Rules to Incorporate the Forfeiture
Guidelines ("Forfeiture Policy Statement"), and Section 1.80 of the
Rules, the base forfeiture for public file violations is $10,000. In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(D) of the
Act, which include the nature, circumstances, extent, and gravity of
the violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. In this case, although the public
inspection file was partially complete, it did not contain several
required items, in particular, multiple years of the radio
issues/programs lists. We therefore conclude a forfeiture amount of
$4,000 is appropriate. Applying the Forfeiture Policy Statement,
Section 1.80, and the statutory factors to the instant case, we
conclude that KITZ Radio is apparently liable for a $4,000 forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, KITZ Radio Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR FORFEITURE in the amount of
four thousand dollars ($4,000) for violation of Section 73.3526 of the
Commission's Rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty days of the release date of this
Notice of Apparent Liability for forfeiture, KITZ Radio Inc. SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
12. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Seattle District
Office, 11410 NE 122^nd Way, Suite 312, Kirkland, Washington, 98034,
and must include the NAL/Account No. referenced in the caption.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
15. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail to KITZ Radio Inc.
FEDERAL COMMUNICATIONS COMMISSION
Steven C. Houser
Acting District Director
Seattle District Office
Western Region
Enforcement Bureau
47 C.F.R. S 73.3526.
47 U.S.C. S 503(b).
The file contained complete issues/programs lists for the license term up
to and including calendar year 2004, and undated lists of public service
announcements.
47 C.F.R. S 73.1020(a) and (a)(15)(i).
47 C.F.R. S 73.3539(a).
See File No. BR - 20050930AIZ, filed September 30, 2005 (Broadcast Renewal
Application).
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'repeated', when used with reference to the
commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S 73.3526(a)(2).
47 C.F.R. S 73.3526(b).
47 C.F.R. S 73.3526(e)(1).
47 C.F.R. S 73.3526(e)(1).
47 C.F.R. S 73.3526(e)(12).
See File No. BR - 20050930AIZ, filed September 30, 2005 (Broadcast Renewal
Application).
See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999) (citing
Gaffney Broadcasting, Inc., 23 FCC 2d 912, 913 (1970) and Eleven Ten
Broadcasting Corp., 33 FCC 706 (1962)); Surrey Range Limited Partnership,
71 RR 2d 882 (FOB 1992).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S
1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 73.3526.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
2
Federal Communications Commission